ADEA Disparate-Treatment Plaintiffs Must Prove Age Was the But-For Cause of the Challenged Employment Action

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In a surprising decision, the Supreme Court held, 5-to-4, that federal age discrimination claimants must prove that their age was the "but for" cause of the challenged employment decision (such as failure to promote, demotion or termination). Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (June 18, 2009). This means that ADEA plaintiffs bringing disparate treatment claims generally will have a more difficult burden of proof as compared to Title VII plaintiffs.

Title VII disparate-treatment claims may proceed upon a showing that a protected characteristic was "a motivating factor" among other factors, and in some circumstances the jury in a Title VII case is given a mixed-motives instruction, which shifts the burden of persuasion to the employer. Under the court's new holding in Gross, however, and contrary to the then-existing law in many circuits, a mixed-motives jury instruction is "never proper in an ADEA case."

Facts. When Jack Gross was 54 years old, his employer (FBL Financial Services Group, Inc.) reassigned him from a "claims administration director" position to a "claims project coordinator" position. Many of Gross' responsibilities were transferred to a new position, assigned to one of Gross' subordinates, who was in her early 40s. Although FBL did not reduce Gross' compensation, Gross considered the reassignment a demotion and brought suit alleging age discrimination. FBL asserted that the decision to reassign Gross was part of an overall corporate restructuring and argued that Gross' skills were better suited to the reassigned position.

Procedural History. After trial, the district judge instructed the jury that Gross merely needed to show that his age was "a motivating factor" among others, and that if Gross met this burden of proof, FBL had the burden of proving that it would have "demoted" Gross regardless of his age. Based on this mixed-motives instruction, the jury awarded Gross $46,945 in lost compensation.

FBL appealed and the Eighth Circuit reversed and remanded. The Eighth Circuit held that the district court should have required Gross to show "direct evidence" (a specific link between the demotion and his age) before providing a mixed-motives instruction.

ADEA as Unique; No Mixed-Motives Instructions. The issue before the Supreme Court, as framed by the parties, was whether an ADEA plaintiff must present direct evidence of discrimination in order to receive a mixed-motives jury instruction. Surprisingly, the majority opinion (written by Justice Thomas) decided the case on the threshold question of whether a mixed-motives jury instruction is ever appropriate in an ADEA case.

In determining that a mixed-motives theory does not apply to the ADEA, the majority distinguished the ADEA from Title VII and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In the splintered Price Waterhouse decision (there was no majority opinion), six justices agreed that under Title VII, a plaintiff must first prove that discrimination was a "motivating" or "substantial" factor in the employer's action, after which the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of the impermissible consideration. After Price Waterhouse, Congress amended Title VII, effectively codifying Price Waterhouse and clarifying that a Title VII plaintiff need only prove that the discriminatory factor was a motivating factor — not the "but-for" cause of the decision. Subsequently, many federal circuits used the same approach in ADEA trials.

The majority in Gross noted distinctions between the language of the ADEA and that used in Title VII and observed that Congress did not amend the ADEA when it amended Title VII to adopt the Price Waterhouse approach. Based on these points, the majority in Gross held that a mixed motives approach does not apply under the ADEA and, instead, the plaintiff must prove that, but for his or her age, the employer would not have taken the challenged action.

Significance of Gross. The "but for" test required by Gross will make it more difficult for a plaintiff in an ADEA case to show that the employer discriminated against him or her; the fact that the employer acted due to some combination of permissible and impermissible reasons will no longer suffice. Note, however, that this new standard only applies to ADEA cases, and not those arising under Title VII.